Case T-51/06: Action brought on  21 February 2006  — Fardem Packaging v Commission
Date: 2006-02-21
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, industrial product, packaging product, restrictive trade practice

C 96/18

EN

Official Journal of the European Union

22.4.2006

In support of its action, the applicant raises the following heads
of complaint:

— breach of Article 2(1) of

the Regulation on concentra-
tions (1) by reason of what the applicant considers to be the
inappropriate appraisal of the proposed concentration,
in
that the Commission failed to take account of the history of
the banking sector in Poland, the large amount of foreign
investment and the reasons why the Polish Government
introduced limitations on investments in the event of the
privatisation of State banks. The applicant further submits
that the Commission breached Article 2(1) of the Regu-
lation inasmuch as, when concluding its appraisal of the
compatibility of
the proposed concentration with the
common market, it failed to take account of the existence
and effects of Article 3(9) of the privatisation agreement, (2)
which,
in the view of the applicant, amounts to a legal
barrier to market entry within the terms of Article 2(1)(b)
of the Regulation on concentrations. The applicant also
contends that the Commission adopted an inappropriate
evaluation of concentrations on the Polish banking market
and also erred in its appraisal of the effect which the
proposed concentration would have on competition within
the market for investment funds and a number of specific
markets within the Polish banking sector;

— breach of Article 6(1) of the Regulation on concentrations,
inasmuch as the proposed concentration ought, according
to the applicant, to have given rise to serious doubts on the
Commission's part as to its compatibility with the common
market and should have led to the initiation of proceedings
or the second phase of the investigation as to whether the
proposed operation comes within the scope of the Regu-
lation on concentrations;

— breach of Article 11 of the Regulation on concentrations,
breach of Article 5 of the implementing regulation (3) and
infringement of the principle of fair and proper administra-
tion; the applicant takes the view that the notification of
the concentration, as indicated by the parties, was incom-
plete inasmuch as it did not contain any information on the
matter of the conditions of the privatisation agreement, in
particular Article 3 thereof, and as such should not at all
have been taken into consideration by the Commission;

— breach of the duty to cooperate resulting from Article 10 of
the Treaty establishing the European Community by reason
of the failure, before the decision was adopted, to take into
consideration the legitimate interests of the Republic of
Poland, the protection of which is provided for in Article
21(4) of the Regulation on concentrations; in the view of
the applicant, the Commission was under an obligation,
the decision recognising the
prior
concentration as being compatible with the common
market, to take action for the purpose of obtaining full
information on any legitimate interests of
the Member
States, a fortiori as it was possible for the Commission,
the
when monitoring the Polish banking market over
period prior to the Republic of Poland's accession to the
European Union, to familiarise itself with the structure of
that market, and the Commission must have been aware of

to the adoption of

the existence of a legitimate public interest on the part of
the Polish Government in guaranteeing the application and
implementation of the strategies of de-monopolisation and
privatisation;

— breach of Article 253 EC and of the obligation to provide
specific reasons for a decision, a failure which, in the view
of the applicant, renders more difficult the reconstruction
and monitoring of the correctness of the process by which
the law is applied by the Commission.

(1) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
the control of concentrations between undertakings (OJ 1989 L 395,
p. 1).

(2) Agreement on the sale of shares in Bank Polska Kasa Opieki Spółka
Akcyjna – Grupa Pekao S.A. entered into on 23 June 1999 between
the State Treasury of the Republic of Poland and Unicredito Italiano
SpA and Allianz AG.

(3) Commission Regulation (EC) No 802/2004 of 7 April 2004 imple-
menting Council Regulation (EC) No 139/2004 on the control of
concentrations between undertakings (OJ 2004 L 133, p. 1).

Action brought on 21 February 2006 — Fardem Packaging
v Commission

(Case T-51/06)

(2006/C 96/34)

Language of the case: Dutch

Parties

Applicant: Fardem Packaging B.V. (Edam, Netherlands) (repre-
sented by: F.J. Leeflang, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— set aside in whole or in part the decision addressed to

Fardem;

— reduce the fine imposed on Fardem;

— order the Commission to pay the costs of

the present

proceedings.

22.4.2006

EN

Official Journal of the European Union

C 96/19

Pleas in law and main arguments

Action brought on 21 February 2006 — Harry's Morato v
OHIM

is challenging the Commission decision of
The applicant
30 November 2005 relating to a proceeding pursuant
to
Article 81 of the EC Treaty (Case COMP/F/38.354 — Industrial
bags), in which the applicant was held to be jointly and sever-
ally liable in respect of its participation in a cartel and ordered
to pay a fine.

In support of its action the applicant alleges breach of Article
81 EC, Article 253 EC, and Article 23(2) of Regulation No 1/
2003, as well as infringement of the principle of care, the prin-
ciple that reasons must be given, and the principle of equal
treatment.

The applicant first submits that the Commission has misunder-
stood the applicant's defence with regard to its conduct both
before and after 1997. While the applicant does not deny that
it took part in the cartel, it points out that, prior to 1997, it
was entirely dependent on its then parent company. After
1997, however, it was independent and its intentions altered
gradually but fundamentally.

The applicant goes on to submit that the Commission proceeds
on the basis of an erroneous appraisal of the facts with regard
to the applicant's participation in the ‘Valveplast’, ‘Benelux’ and
‘Teppema’ groups, as also with regard to its participation in the
‘Belgium’ and ‘Block Bags’ groups. The applicant claims that the
Commission accepted a number of conclusions which were
negligent and inaccurate in regard to several forms of conduct.
The applicant also points out that the Commission failed to
take any account of the fact that the ‘Belgium’ and ‘Block Bags’
groups were terminated prior to 1997.

Furthermore, the applicant alleges that the Commission erred
in its appraisal of the facts relating to the determination of
geographical markets. The applicant points out in this regard
that it has no turnover in Spain and only a minimal turnover
in France.

The applicant also criticises the Commission on the ground
that it did not apply the leniency notice to the applicant and
that it failed to treat certain facts indicated by the applicant as
amounting to mitigating circumstances.

With regard to the determination of the basic amount of the
fine, the applicant disputes that the individual market shares
were determined on the basis of turnover achieved instead of
tonnage, the application of differentiated treatment in cate-
gories on the basis of market share and the expression of that
differentiation in categories, as well as the application of the
basic amount of the fine to each category as determined.

The applicant concludes that the Commission was wrong to
decide that the applicant and Kendrion N.V. constituted an
economic unit, on which ground Kendrion was unjustly fined
as a result of a breach committed by the applicant.

(Case T-52/06)

(2006/C 96/35)

Language of the case: Italian

Parties

Applicant: Harry's Morato SpA (Altavilla Vicentina, Italy) (repre-
sented by: Niccoló Ferretti, Giovanni Casucci, Fabio Trevisan,
lawyers)

Defendant: Office for Harmonisation in the Internal Market
(OHIM)

Other party to the proceedings before the Board of Appeal:
Ferrero OhG mbH

Form of order sought

The applicant claims that the Court should:

— amend decision R 600/2005-1 of the First Board of Appeal

of 16 December 2005;

further

to the application for

— call on the OHIM to immediately register the trade mark
registration No
‘Morato’
in the absence of
1 849 439 and subsequent restriction,
any real subjective impediment and in any case in view of
the fact
it does not conflict with the trade mark
‘MORATO’, and order the defendant to pay the costs.

that

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Figurative mark ‘Morato’ (appli-
cation for registration No 1 849 439), for goods in Class 30.

Proprietor of the mark or sign cited in the opposition proceed-
ings: FERRERO OHG mbH.

Mark or sign cited in opposition: German word mark ‘MORETTO’
(No 39 707 273), for goods in Class 30.